W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
CITATION: R. v. Langill, 2007 ONCA 638
DATE: 20070918
DOCKET: C45988
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG AND LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
DEAN LANGILL
Appellant
David E. Harris for the appellant
Paul T. Murray for the respondent
Heard and released orally: September 12, 2007
On appeal from the judgment of Justice John McMahon of the Superior Court of Justice dated September 18, 2006 dismissing an appeal from the conviction entered by Justice Faith M. Finnestad of the Ontario Court of Justice dated October 15, 2004.
ENDORSEMENT
[1] The appellant was convicted of sexual touching and invitation to sexual touching in relation to a six-year-old boy. His summary conviction appeal was dismissed. He seeks leave to appeal from the dismissal.
[2] The trial judge found that the appellant's relationship with the complainant went far beyond his earlier relationship with the complainant's older brother and, furthermore, that the appellant's relationship with the complainant was “unnaturally close”. Although the trial judge stated that the appellant gave his evidence well, she relied on her finding of an unnaturally close relationship to reject the appellant's evidence that his relationship with the complainant was innocent and to support the complainant’s version of events.
[3] While the appellant concedes the relevance of the relationship evidence, he contends that using that evidence as the sole basis for rejecting his evidence and for raising the Crown's case to the level of proof beyond a reasonable doubt was unreasonable and that the summary conviction appeal court judge erred in failing to accept his submission in that respect.
[4] We agree. In the absence of negative findings concerning the appellant's testimonial credibility, in our view, the evidence of the appellant's relationship with the complainant was not sufficient, in itself, to bear the weight of the Crown's case. Read as a whole, the trial judge's reasons indicate that she had no basis for rejecting the appellant's evidence apart from what she viewed as the unnaturally close relationship between the complainant and the appellant.
[5] While the appellant's close relationship with the complainant—a six-year-old boy to whom he was not related—was undoubtedly unusual, the appellant had a demonstrated history of altruistic motivation in his long-term relationship with the complainant's older brother. In these circumstances, in our view, it was not open to the trial judge to reject the appellant’s evidence and make a finding of guilt beyond a reasonable doubt based solely on her assessment of the nature of the relationship between the complainant and the appellant. In our opinion therefore, the findings of guilt were unreasonable.
[6] Given that the trial judge expressed no other reservations concerning the appellant’s evidence, the appropriate remedy is to enter not guilty verdicts.
[7] Accordingly, leave to appeal is granted, the appeal is allowed, the convictions are set aside and verdicts of not guilty are substituted.
“Simmons J.A.”
“Robert P. Armstrong J.A.”
“S.E. Lang J.A.”